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tv   Future of FISA Part 4  CSPAN  June 15, 2017 5:51pm-6:43pm EDT

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potential damage if there is a failure in those layers of security. so, i am interested in the number. if the number were 150, i don't know if we would be hearing the same level of sort of suggestion. it is irrelevant. i want to thank the audience and the panel. hopefully as the debate unfolds it can be thoughtful. thank you to the four of you. it has been a great discussion. and thank you to the audience. [ applause ] >> section 702 of the foreign surveillance act expires. to gather foreign intelligence. here nows from the national programco director. she spoke for about 50 minutes.
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>> liza goitein. she isco director of the liberty. and national security profiling,
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transparency, accountability, checks and balances and detainee policy. one quick note. when liza finishes this session we're going to offer you a chance to go upstairs to our rooftop. it's a nice day and we have a little reception up there in the sunshine and spring weather. so, please join me in welcoming liza to the podium. [ applause ] >> thank you, mike, for that kind introduction and thanks to the hoover institution for inviting me and thanks for coming and staying. i mean, this section 702, i'm well aware, can be a very dry, very technical subject, and i salute you all for recognizing its important and for taking the time to understand the core issues that lie beneath the complexities and the jargon. i want to start by telling you a story. and to tell the story from the beginning i have to go back to the 1940s to the end of world war ii. the national security state was in the infancy and very few laws or really even internal
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regulations saying what the intelligence agencies could and couldn't do. the fbi operated without any legislative charter and it was under pretty much the complete control of j. edgar hoover, who exercised a kind of tyranny over the rest of the federal government. our wartime ally, russia, had marphed into our enemy. fear of communism was everywhere and just as great as our fear of terrorism item. the fbi had a campaign of widespread domestic surveillance. the cia and the nsa joined in the act citing the possibility of foreign involvement in domestic movements, even though that was never proven. and gradually, over a period of decades, the specter of foreign communist influence became the basis, some might say the excuse for the infiltration, surveillance and systemic harassment of a range of
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social justice and political movements with a particular target on civil rights and anti-war protests. at the same time, leaders were able to use intelligence agencies unchecked political powers to dig up dirt on political opponents, pesky journalists and personal enemies and the like. some of us -- many of us are too young to remember that time even if we did live through some of it. it's difficult to imagine what it would be like to be afraid to speak your mind about politics or about politicians, although i do think that muslim americans in this country are getting a taste of that now. most people back then knew someone who lost their job or who had suddenly been mysteriously audited by the irs or whose neighbors shunned them after they received a visit from an fbi agent. that was the atmosphere back then. in the 1970s some of the worst abuses of the intelligence
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agencies started to come to light and the senate appointed a special committee, the church committee to investigate. what they found is the stuff of legends. the cia, a special unit, collected information on 7,000 americans and 6,000 groups engaged in political activism. the nsa copied and analyzed as many as 150 telegrams going in and out of the u.s. at this point, which seems totally quaint. the fbi bugged martin luther king jr.'s hotel rooms in order to get evidence of extra marital affairs it then used to try to blackmail him into committing suicide. congress and the department of justice responded to the church committee's revelations by putting in place a number of laws and policies that
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established a kind of golden rule. and that rule was that intelligence and law enforcement agencies could not collect information about americans unless they had individualized fact-based suspicion of illegal activity. depending on how intrusive the surveillance was, might have to get a warrant or they might have to get a subpoena but at a minimum they there had to be reasonable suspicion of wrong doing. the foreign intelligence surveillance act is one of these laws. if the federal government acting inside the united states wanted to collect communications for foreign intelligence purposes and if there was an american on one end of the communication, the government had to apply to a special court. by the way, if it was foreign to foreign, they didn't. if an american was on one ended that had to go to the fisa court and show probable cause the target was a foreign power or an agent of a foreign power and if the american was the target that involved some level of criminal activity based on the definitions in the statute. the idea behind all of these laws was if that government
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officials had to point to an objective indication of wrong doing it would be harder for them to fall back on racial bias and political grudges or other improper motives and it basically worked. it wasn't perfect, it didn't end surveillance abuses, but they became the exception rather than the rule and stayed that way for almost three decades. then came 9/11 and just as quickly as that rule had been put into place it was tossed aside. the individualized showing that had been required in order to get business records about americans in foreign intelligence cases was replaced by bulk collection. the department of justice guidelines for domestic investigations created a new category of investigation called an assessment, which lacks a factual predicate. meaning there is no fact-based reason to suspect wrong doing. the policies for searches at the
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borders were changed so that customs officials could search the contents of laptops and other electronic devices without reasonable suspicion which was required before. some kind of elicit activity, and there were section 702. so, let me just stipulate that this response to the 9/11 attacks was entirely understandable, and i mean that. when something so devastating has happened, the natural instinct is to remove any barrier on the government's ability to do anything that conceivably could have stopped it. but in this instance at least, that instinct was misguided. the 9/11 commission found fault with many things that the intelligence agencies were doing, and issued a slew of recommendations, but it never recommended changing the laws to remove the requirement of suspicion for surveillance, to create a regime of suspicionless surveillance, that was never recommended and that's because there's absolutely no requirement that doing that actually helps in any way to make us safer.
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and i'll circle back to that. that getting back to 702. we have heard about the changes made to the law. so i'll briefly reiterate what i think are probably the two most fundamental ones. first, it removed the requirement of case by case judicial approval when an american is on one end of the communications. these days the government is quite dismissive, even sarcastic at times about the notion that they could be required to get a court order to collect on a foreign target but in fact that is exactly what the law retired from 1978 up until 2007. second, section 702 expanded the permissible pool of targets and at this point there the is no requirement that the foreign
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target pose in threat to the united states, have any information about a threat to the united states or be suspected of any wrong doing. not only does this change allow the government government to target innocent private citizens overseas, it also invariably increases dramatically the number of americans whose communications are subject to being collected, and also increases the likelihood those americans themselves are ordinary law-abiding citizens. so it turns surveillance that is supposed to be targeted at foreign threats into a potential . it can be secondary. but, that term as was alluded to earlier, is broad enough to encompass conversations about current events. i have had conversations with my stepmother who is a foreign national who lives in
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switzerland about trump's foreign policy that the nsa could legally collect under section 702. now in practice the government probably does have rationale. i don't stay up at night worried about it. but i also doubt that every target of surveillance is someone who pose. i want to address the argument we've heard today that the changes made to section 702 were necessary to modernize fisa. and there's a bit of a creation myth here. the idea is that congress originally intended to regulate surveillance only for wholly
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domestic conversations not for international ones but for some reason didn't say so and instead used the method of communication wire versus radio as a proxy because methods of communication have changed with more and more international communications traveling by wire which is true. congressional intent is being thwarted. the problem with this argument is that no one has ever managed to explain why congress would have engaged in this very specific parsing of technologies if it simply wanted to differentiate between international and domestic communications. that would have been a much simpler law to write but congress didn't write that law. moreover, proponents of this argument gloss over the fact that a significant proportion of international communications did travel by wire in 1978 between a third to a half of communications. so this notion that they used to all be radio and now they're all wire, it's just not true. so the modernization theory sounds good but it doesn't hold
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up, at least, it can't be the full explanation. there's a different technology-based argument and they were kind of conflated in an earlier discussion but it's a very different argument that julian raised that makes a bit more sense and that's the argument that certain foreign-to-foreign communications which were clearly not covered by fisa in 1978 now transit through the u.s. in ways that bring them within fisa scope. and this is true for one category of communications and that's foreign-to-foreign e-mails that are stored on u.s. soil. but the changes made by section 702 obviously went far beyond what would be necessary as julian was saying to address that discreet problem. the truth is changes in technology were an exhibiting the nsa's ability to conduct surveillance in the years before 702 was passed but they were making surveillance easier not harder. the reach of government surveillance in nineteen seven eight was substantially constrained by technological limitations and cost constraints on electronic
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communication itself and on the government's ability to acquire, store and process all of these communications. over the past couple of decades, these constraints have become negligible. and the government has unprecedented capabilities today to tap-in to communications which have explode all kinds of communications and to store them in the pedibytes and to use sophisticated computer analytics to sort through them. so this is truly the golden age of surveillance. there's another aspect to this. in past decades international communication versus purely domestic was relatively rare because it was difficult and expensive. today in our interconnected world, it is cheap, it is easy, sometimes it's free and it's necessary. could i just have a show of hands who here has communicated with a foreigner overseas at least a few times in the last year? okay, i think that's everybody. so what all this international communication means is that the amount of information about
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americans that the nsa intercepts even when targeting foreigners overseas has increased dramatically and yet, instead of increasing american safeguards for privacy, the law has gone in the opposite direction. the vastly expanded scope of 702 to any foreigner overseas has turned fisa into a tool for mass surveillance. what do i mean by that? in 2011 according to fisa court, the nsa was collecting 250 million communications a year under section 702. that number is almost certainly higher today if only because the number of reported targets has risen steadily each year. as we know, the government is generally allowed to keep these communications for about five years. that means at any given time, there is well over a billion communications that are stored in government databases. from 702. how many of those communications have an american on one end of them? wouldn't we like to know. this is the question that
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lawmakers have been asking the nsa for years. the nsa's original response is we don't know. it would be too time consuming and expensive to find out and it would violate americans' privacy to find out. this last one is not quite as crazy as it sounds. it's true for some kinds of communications the government would have to do some digging to figure out if there's an american on one end. but there's also another way to do this, and for upstream collection, the government is required as a constitutional matter, to apply a filter, filter to try to filter out wholly domestic communications on the front end. the way it does that through a combination of using the ip address and certain other techniques that it has. and it says that it can reliably screen out the vast majority of domestic communications in that way. if that tech near, ip address s plus is sufficient to identify who is a u.s. person for purposes of complying with the constitutional requirement, it's
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sufficient for purposes of giving us an estimate of how many americans communications are picked up. and in fact under president obama, the director of national intelligence finally agreed that they would do this, they would try to do this. they came up with some methodologies and briefed lawmakers and civil liberties advocates. they were ready to go and then mysteriously for past few months, we've heard nothing about it and then we start hearing again from spokespersons for the government, it's very difficult. there are privacy concerns. so we were on the verge of getting that number. and now somehow, it's out of our grasp. i'm going to state the obvious here. the government can't have it both ways. officials can't simultaneously reassure us that section 702's effect on americans' privacy is absolutely minimal while in the same breath saying they have no idea, and not even a sense, not even a ballpark and no way to figure it out how many americans it' communications are being
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swept up. in the absence of an official estimate, we're left to draw our own conclusions from the publicly available information. the "washington post" reviewed a sample of section 702 communications obtained from edward snowden and reported that approximately half of those communications contained some u.s. person information. we have no way of knowing if that's a representative sample but if you assume that it is, that means that approximately 125 million communications a year would have some u.s. person information in them and at any given time, there will be about half a billion such communications in the government's databases. again, that could be wildly off but in the absence of any official data, that's the best we can do. even if there were the strictest possible minimization requirements on the back end this kind of mass collection and storing of americans' communications is extremely problematic for several reasons. first there's the potential for abuse for government officials to simply disregard the limits on the handling of this data and to misuse it for personal or political purposes.
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i agree there has been very little evidence of that to date, and i think it's true that the laws and the institutions put in place after the church committee changed the culture within these agencies. in general, in a very positive way. people in the agency sometimes talk about a culture of compliance. but the laws and institutions that led to this cultural shift are the same ones that have been steadily eroded since 9/11 and it doesn't take a clairvoyant to see that the culture within these agencies might start to change, too. moreover, while we haven't seen much evidence of intentional abuse, we've seen a remarkable pattern of failures on the part of agencies to comply with fisa court orders. yes, people are human and make mistakes but i'm not talking about a handful of trivial incidents. i'm talking about significant and sustained violations of
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court ordered limits on collection, retention, querying and sharing. in many cases, these violations went undetected for years and then unreported for even longer. during which time government lawyers were misrepresenting the nsa's activities or the agency's activities to the fisa court. and the most recent example can be seen in the april 26 opinion of this year that was discussed earlier. now, these violations are ostensibly inadvertent. but in inadvertent privacy violation is still a privacy violation and the history of repeated systemic violation suggests that one of two things must be happening. either the agencies just aren't try trying that hard to comply and i don't want to reach that conclusion or they're trying very hard but they can't. they're incapable of avoiding serious repeated violations. maybe because the system has
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become so large and so technologically complex. either of those explanations gives me very little reassurance when the government is asking us to trust it with tens, maybe hundreds of millions of our communications. that leads me to another concern. i would love to think that the intelligence community does a better job of securing its data than say the office of personnel management but it wasn't too long ago that wikileaks disclosed the cia's hacking tools. so it's, you know, their record is imperfect. and all of this information about presumptively innocent americans as well as innocent foreigners is sitting there in massive databases that are a very attractive target for hackers because they also include some potentially very valuable foreign intelligence information. and so you can see how the russian government or the chinese government might be interested in this data. now, i've been talking about americans' privacy but we also need to consider the effects of allowing the government to target any foreigner overseas.
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foreigners may not have fourth amendment rights but they do have rights to privacy acknowledged under international law including treaties to which the united states is a party. and the mass collection of foreigners' e-mails and phone calls is very likely a violation of those international obligations, at least that is becoming the consensus position of courts and legal authorities in europe. as a direct result, the agreements that u.s. technology companies have reached with counterparts in europe in order to do business overseas have been struck down. and they are in jeopardy. where there's one that was struck down in 2015, there's another that replaced it. that one may not survive if section 702 is not amended in some form when it's reauthorized. this is a serious economic threat to the american tech sector which is why more than 30 companies including facebook, google and microsoft signed a letter last week urging significant reforms of section 702.
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for all of these reasons, strong back end protections can't cure the problem of overly broad collection on the front end. conversely, narrowing collection at the front end isn't going to eliminate the need for strong back end protections. we heard this earlier. it's the nature of surveillance. in any kind of surveillance you do, you are going to end up with incidental collection, collecting innocent conversations as a result of that surveillance. that's why minimization is required as a constitutional matter as well as a statuary one. the concept behind minimization in the 702 context is fairly simple. the interception of americans' communications when targeting foreigners is inevitable, but because such interception ordinarily would require a warrant or an individual fisa order, incidentally collected u.s. person information generally should not be kept or
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used or shared. subject to narrow exceptions. the statutory minimization requirement however is almost entirely lacking in specifics. it leaves the details to the agencies and not surprisingly, the agencies' minimization procedures contain numerous exceptions and have grown more and more permissive over the years as the inevitable mission creep has set in. trying to decide how much to tell you about. how interested are you in knowing about the minimization procedures? show of hands. i'm going to go ahead. not many hands but i'm going to go ahead anyway. the nsa can share the raw data with the nsa, sorry with the cia, the fbi now also the national counter-terrorism center as of recently. all of these agencies are generally allowed to keep the raw data including u.s. person raw data not minimized for five years after the certification requires. so right there they can keep the u.s. data for five years. they can also seek extensions at that time from a high level official and the limit doesn't
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apply if the communications are encrypted which is increasingly the case for people who use mobile devices. if they con information with no evidence of a crime, the agency is supposed to purge the data but the oversight board found it essentially doesn't because it can almost always pos sit a reason why some day it might be relevant. the fbi and cia don't even have that requirement. they just rely on the five-year. moreover, if the fbi reviews information concerning u.s. persons and comes to no conclusion whether or not it's foreign intelligence, literally no conclusion, they look at it, don't know, the five-year limitation at that point evaporates and replaced with some longer period of time that is still classified. so i'll just -- that's enough of that because that's really the
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weedy stuff. but it goes to show that the words we talk about, targeting minimization, incidental, they don't mean what people ordinarily think of when they hear these words. it's not minimizing the retention of u.s. person information. it's putting some restrictions on it but not minimizing by any definition of the term. the most controversial and disturbing aspect of the minimization procedures is that they allow the nsa, cia and fbi to search through raw section 702 data using u.s. person identifiers with the express goal of finding and reviewing americans' communications. this is the backdoor search loophole. remember, if the government wants to obtain an american's e-mails or phone calls in a foreign intelligence investigation, it has to go to the fisa court and show probable cause that the american is a foreign power or an agent of a foreign power. if the government wants to obtain an american's phone calls or e-mails in a law enforcement investigation, it has to go and get a warrant. to ensure that section 702 is not used to avoid these
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requirements, the statute contains a prohibition on reverse targeting. before conducting section 702 surveillance, the government has to certify that its interest lies only in the foreign target and that it does not intend to target any particular known american. that's what makes it legal in the beginning is that certification. only interested in the foreigners, not the americans. not any particular known americans. and yet, the moment the data is in their hands, all three agencies can sort through it looking for the communications of particular known americans. the very people in whom the government just disclaimed any interest. and the fbi can even search for those communications to use in ordinary criminal cases that have nothing to do with foreign intelligence or with national security. i've said it many times, i'll say it again, this is a bait and switch that is totally inconsistent with the spirit if not the letter of the reverse
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targeting prohibition and it creates a very dangerous end run around the fourth amendment. now, i've heard intelligence officials defend backdoor searches on the ground that once information is lawfully collected it can be used for any purpose. alex did an excellent job earlier explaining why that's not the case. i want to add on top of that that the very definition of minimization is you can't use it for any purpose. that's what minimization means and that's not only a statuary requirement, that's a constitutional requirement, as well. the fisa court has plainly said and i quote, the procedures governing retention use and dissemination bear on the reasonableness under the fourth amendment of a program for collecting foreign intelligence information. so what is the path forward? listening to me speak, you would think that i am completely against section 702 and i want it to lapse. but everything i've been talking about is outside the core of
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what section 702 was supposed to do. and what it was supposed to do was to allow the government to go after foreign threats suspected terrorists and not have to get a warrant to do it. i think there are several changes that should be made to section 702. there are two major ones that i want to discuss today fairly quickly. i know i'm standing between you and cocktails but none of those changes go to the heart of section 702 which is warrant collection on suspected foreign threats. i believe that that can stay in place. and we can still with that in place we can still address the serious, the most serious civil liberties issues which arise not from that but from all of this sort of penumbra and ways in which the law is much broader than it ever had to be to do what it was supposed to do. in reverse order arguably, the backdoor loophole should be shut. the government should have to obtain a warrant for americans
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communications and criminal investigations. it should have to get a fisa order to search communications in foreign intelligence investigations. by the way, there is a precedent for requiring the government to get a warrant for information it has already acquired in criminal cases where the government has made electronic copies of computers or iphones and has seized those and gotten a warrant to search them. it has then been required by the courts to go back and get a second warrant if it wants to do a later search even though it lawfully acquired and has that information. this is not unprecedented. as for the proposal to allow the government to search only for metadata and then if something comes up to have to then get a warrant to look at content, we have a process for the government to search for americans' metadata. it's section 215. the government can go to the fisa court, show relevance to the investigation and get a court order to search for
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metadata. i'm not on board with the idea that they can do it with absolutely no process whatsoever as a kind of of compromise in addition to closing the book door hope hole, the scope of permissible targets should be narrowed. i also agree that the end of a bout of collection should be codified. i want to talk about something we haven't spoken about as much. government should have to have a reasonable belief, i'm not talking about a warrant or probable cause standard, a belief that the target is a foreign power or agent of a foreign power or in some way poses a threat or has information about a threat to the united states. there is no reason to think that this would make section 702 less effective. in every case that the government has publicly cited including the zazi case as evidence of section 702's importance, the initial surveillance targeted a suspected terrorist, someone the government already knew or believed to have terrorist ties. and when government officials have discussed the larger nonpublic pool of success stories, they've described them
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the same way. matt olsen who spoke earlier testified last year that the typical section 702 success story has involved what he called narrowly focused surveillance targeting a specific foreign individual overseas based on the government's reasonable belief that the individual was involved with terrorist activities. needless to say, these cases does not support the idea that the government needs the authority to the target any foreigner overseas and collect all of his communications with americans. so the good news is we can do this. we can have a foreign intelligence surveillance law that gives the government broad latitude to go after foreign threats without getting a warrant, at the same time we can protect the privacy of innocent americans and foreigners through stricter minimization requirements and a more sensible pool of permissible targets and we can preserve the foundational principle that the government must get a warrant if it wants to listen to an american's phone calls or read their e-mails. intelligence officials will say
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we couldn't or shouldn't do it and say any additional limitations on their authority will make us less safe. they made the same argument when congress was considering the recommendations of the church committee back in the 1970s. and i think they believe it, they believe it now. that brings us full circle because the alternative to moving forward with reforms is to move backward to a time when americans were afraid of their own government. at some time in the future, and perhaps the not too distant future, the self-restraints and the self-policing and the culture of compliance that have kept the government from taking full advantage of the tremendous legal license contained in section 702 will fail. unless we act. thanks. [ applause ] does anyone have any questions that don't relate to which drinks you can order when you get upstairs?
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yes. >> this may sound like a really stupid question. i'd like you to try to walk us through two situations. the first situation is under your reforms, if you target a foreigner and you pull up and the snowden seemed to suggest you could pull up a facebook page, you could pull up chats. and there's an american at the other end. if you could under your system you could read that, and there's something on the american end that is suspicious, wouldn't that by definition give you enough to get a warrant? >> well, so that you're raising another set of reforms which i didn't talk about, but in addition to getting warrant and closing the backdoor search
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loophole, another important set of considerations is use limitations when you can use information that you actually bump into as you're looking through, and again, the idea is this is information you wouldn't have had unless you had certified we're not interested in the american, we're only interested in the foreigner. you got it without a warrant for that reason. question becomes how much use should the government have of information that it bumps into. i want to be very clear. i think that usually when this happens, i think the bigger threat is the backdoor search because i don't think it's that often that accidentally the government bumps into a random crime being committed by an american when they're reading. go on. >> but maybe i'm just being thick here but is a backdoor search just throwing the name of an american into a search query as opposed to already having some information from having queried the foreign target? >> yeah, it's the difference
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between going looking for that information versus stumbling across it. so you could imagine if you had a warrant at the front end, which you don't which is a key difference. let's say you did, and the analogy would be if you're searching a house and you find a murder weapon, you're searching for the murder weapon, that's what the warrant says and it's the difference between literally tripping over a bag of drugs on your way to fine the murder weapon versus finding the murder weapon and saying you know, i think i'm going to go look for some drugs which i can't do. >> i'll stop after this. in the snowden movie, he shows, -- >> i haven't receive it. >> the screen shot of the spider web of all of these connections. is the abuse we're worried about that there's a targeting of a foreigner reasonably thought to be abroad and at what point is the american wrongfully searched in that process?
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is it that information is already been pulled up by the nsa about this foreign target or is it just that there's information about this foreign target that is in a database blind and you throw the american's name in as a search item. >> they're two different concerns. they're both concerns and they're theoretically distinguishable but they're both concerns. does that make sense? >> it does. thank you. >> okay. >> you. >> i don't know if you do a lot of interaction with staffers on the hill but do you see as mentioned earlier, there was kind of surprising allies. have you talked to any of these people who have previously supported kind of these strong surveillance authorities and now have questions about it, and do you think that they're open to kind of serious reforms that
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aren't politically motivated. >> without naming names, i think the sort of wildcard here is people who are very strong defenders of section 702 in the past such as devin nunes who is now has said things that were seemed critical of it but then he seemed to be walking a line where he wasn't so much criticizing the law but how it was used but i think there are a lot of people and this is my sense from being up on the hill who republicans and democrats who voted for this law without really understanding that well what was in it. i don't fault them. i don't understand how they stay on top of everything they have to stay on top of. i think it's a big problem. this is complicated under the best of circumstances. i think that they listened to people like jim baker who came in and said we need this authority and jim clearly believes that and is acting in good faith and they said we trust you. and they granted the authority. and they didn't really know what
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was involved in it. i think as the details some of the details are coming out and as they're focusing more on it, i think there's going to be room for some of those people to say not let's get rid of 702, not that this is a travesty, not that we need a warrant anytime we target a foreigner but can we trim some of the fat around the ends of the law where is where kind of most of the risks are. do we need the ability to get any foreigner overseas? could we be more specific so that the stuff isn't held on to for five years or longer if the fbi looks at it and says i don't know. so i think we might see that level of engagement from some people. that's welcome. yeah. >> bringing up the fact that i'm no expert but you kept mentioning that the law basically says if you're a foreigner overseas, we can target you. willy-nilly. we don't have to have a reason.
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but as far as i understand it, there's a third component to that and that's the foreign intelligence value. >> yeah. >> so not just that you're a foreigner overseas but there's the third component which is the reason that we're targeting you. >> yeah, i did mention that. and what i said about that is it can be secondary reason. your primary reason can be something else entirely but you have to have it -- >> but i don't know that that true. there are three things you have to meet to target somebody under 702. >> the court has said that's true. that's not my reading of it. that's actually what the law says is that a significant purpose has to be the collection of foreign intelligence and the fisa court has said it doesn't have to be the primary purpose. >> in the compliance world, those are three things that are droubl and triple and quadruple checked to make sure exists.
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>> absolutely. >> that there are three things. the foreign intelligence value is critical to making sure that a target is a legitimate target before you can go and collect that. >> and -- >> assuming that happens and that's true and it's not just willy-nilly random mass collection of anyone who is overseas, if there's -- if there is incidental collection and that person really is a target, a legitimate target because there's some information that's leading us to think that that person could do us harm in some way, and that incidental collection happens to be a u.s. person or one of our allies, a canadian citizen, whatever, that is in close contact with someone we suspect is a terrorist, wouldn't you want to know that? >> yeah. >> you want the fbi to know that. >> sure. >> i do. >> sure. i mean nothing you've said -- you said if we have information this person wants to do us harm.
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>> i want them to know that quickly. i don't want them to have to wait a week to get a warrant for that information. >> i'm not disagreeing with you >> but closing that backdoor, what you're calling that is the backdoor loophole or whatever. >> the backdoor search loophole is when you say i want to read the communication of this american, not canadian. i want to read the information of this american, this guy. i think this guy might be up to something. i'm going to plug that into my database and read his e-mail. >> that's not how that system works. >> yeah, it is. you've already collected the data based on a foreign intelligence purpose but at the point they put in the u.s. person identifier they can put that identifier into the database when they are doing a routine assess many in a criminal investigation. remember, an assessment is when they don't have a factual predicate. they can read an american's e-mails listen to their phone calls when they don't even have a factual basis to suspect
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wrongdoing let alone a foreign intelligence purpose. that's in the oversight board report. it's not a conclusion i'm drawing. to what you said before, the foreign intelligence purpose limitation is unfortunately not that much of a limitation because of the definition of foreign intelligence. which is not derogatory information suggesting someone means to do us harm. i would love it if that were the definition. it's any information relevant to the conduct of the foreign affairs of the united states. that is one of the definitions. and that includes my phone calls to my stepmother about trump's foreign policy. again, i'm not paranoid. i agree. but it fits the -- >> doing something you know bad, you wouldn't even be on the radar. >> if she and i talk about the merits of nafta, is nafta foreign policy. >> i wouldn't know if they were on some list of you know -- >> okay. >> i'm worried about what the law allows, not what is done right now. but what might be done a month from now, a year from now, ten years from now. i think we can narrow this law in a way that allows what you're
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talking about which is going after people who really are, who pose some harm to the united states and doing it without a warrant without reading americans phone calls without an e-mail or having these definitions that would in fact allow conversations with my stepmother to be swept up. i don't think they are, but -- yes. >> last question. >> thanks for the talk. i just sort of i don't know disclosure. i'm sort of in the camp that believes this is an important program but continuing reform and oversight and especially as technology evolves to keep remain vigilant. so i appreciate what you're doing. so my question is sort of about the more vulnerable americans. i think we often forget this. so i have friends who are muslim americans a few have ended up on the no fly list for no reason other than the fact that they
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have relatives in pakistan. this was during sort of the immediate post 9/11 paranoia. we forget this. and i have chosen a path where i'm more in the public eye. i'm in diplomatic circles. i assume my stuff is it swept up by someone. it might be the russians and then the nsa steals it. i have to trust that the oversight and currently, i do. but i am worried about erosion. but i'm also a rich white guy from boston who is well-educated. >> i'm from boston. >> where. >> whalens. >> just outside. >> belmont. >> ultimately, let's be honest with ourselves here. no one's coming for me. i'm lucky in this society. not everyone is that lucky. >> can i tell you a story. >> we forget how afraid muslim americans are right now or christians from syria or sikhs and they're targeted right now by fellow citizens. you know. >> so i write a lot about a lot of critical things about this current administration and i recently traveled
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internationally and it occurred to me on the way back that i might be one of those people whose laptops or cell phones got searched. when it wasn't, i was a little disappointed. i thought how many op-eds do i have to write you're right. i chose that sort of public speaking and all of that. i chose that. i chose to speak out about certain issues that i know could potentially and there are lots of people including muslim americans including immigrants who are probably very worried and who didn't ask for any of this. and one of the harms of overcollection as opposed to one of the reasons why i don't agree with we'll just collect it all but have these stringent safeguards on the back end is because just the fact of that collection and the potential it could be abused causes immediate and concrete harm which is a chilling effect, not a -- but a measurable willing effect on the willingness of certain vulnerable populations willingness to speak freely. in the wake of the snowden
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disclosures, there was a 5% drop in that google measured in government sensitive search terms. so cia, dirty bomb, things like that. a measurable drop in people being willing to type those things into google, not other sensitive words like abortion or something like that but just those kinds of things. so right there that's across the population. then muslim americans, i don't think their response to the 702 has been measured specifically, but the response to the nypd surveillance there's been some studies on that. really dramatic. really dramatic stuff in terms of declines in membership in muslim student associations, declines in mosque attendance. things that should hit us just as deeply, things we should be just as afraid of as we are of you know security incidents. because this is who we are as a people. can we talk to each other?
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can we air our political differences without being afraid that it might be heard the wrong way by the nsa? thank you for raising that. [ applause ] >> tonight live conversation of this year's kong aggressional -- and are expected to take part after yesterday's shooting during a republican practice in alexandria, virginia where majority whip steve scalise was shot. the republicans by texas congressman joe barton. our live covering starts with the first pitch at 7:05.
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on reel america. >> general secretary gore ba chauf, if you seek peace. if you seek liberalization. open this gate. [ applause ] tear down this wall. [ applause ] president ronald reagan 1987 trip to berlin, then on 8:00 p.m. on lectures in history, on how the baby boom, suburbanization, and the emergence of teen culture changed society >> advertisers are looking at
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this. young people are starting to adopt their own style of dress, a kind of segregation, separation of youth culture from mainstream culture. >> and sun dan on the presidency on the 45th anniversary of -- h.r. bob haldeman. >> the conversation is surprisingly brief. the president wants john and meet to meet him at camp david at 1:30 today. when the phone rings again, i fight to stay composed. bob says, he is at camp david too.| the president now feels very strongly that john and i should volunteer to resign.
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>> for our complete schedule, go to c-span.org. >> c-span where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies. and is brought to you by your cable or satellite provider. next a look at mari security. with vice admiral commander

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